DA files application for judicial review of NPA decision on Zuma

This morning, on behalf of the Democratic Alliance, I filed an application in the North Gauteng High Court for a judicial review of the decision by the National Director of Public Prosecutions (NDPP) to withdraw fraud, corruption, racketeering and money laundering charges against Jacob Zuma.

It is now clear that the National Prosecuting Authority (NPA) is too compromised to fulfil its constitutional duty to prosecute Zuma. It caved into political pressure from the Thabo Mbeki faction of the ANC when Mbeki was President, and pursued prosecutions selectively. Two weeks before the election, it has caved into political pressure from the Jacob Zuma faction of the ANC, and discontinued a prosecution selectively. It has dropped the charges against the ANC President.

This is political stage management disguised as legal procedure.

In fact, the NPA has thrown the law-book out the window. The NDPP's decision to discontinue the prosecution was taken on political, not legal grounds. The ostensible justification - that the former head of the Scorpions, Leonard McCarthy, and the former head of the NPA, Bulelani Ngcuka, had colluded to recharge Zuma after the ANC's Polokwane Conference in 2007, and that this constituted an abuse of NPA policy - does not hold water.

If McCarthy and Ngcuka are guilty of a crime, let them be charged too. Their alleged connivance does not exonerate Zuma. As the NDPP conceded yesterday, Zuma has not been acquitted. Only a court of law can do that. Only a court of law can examine and cross-examine the evidence that the NDPP submitted yesterday in mitigation of the decision to drop the charges. And only a court of law can determine whether the decision itself was lawful or not.

The DA believes that a judicial review is the only way to ensure that justice takes its course.

The NDPP's decision to discontinue Zuma's prosecution constitutes "administrative action" in terms of section 33 of the Constitution and section 1 of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA"). As such, the decision is reviewable by the High Court, either in terms of the Constitution or section 8(1)(c) of PAJA.

The DA believes that the NDPP's decision must be reviewed on the following grounds.

1. The decision was not rational.

It was not rationally connected to the information before the NDPP, or to the reasons given for the decision. Until very recently, the NDPP was satisfied that a prima facie case existed against Zuma with good prospects of success if it were to come before a court.  Nothing appears to have changed in this regard.  In accordance with the NDPP's constitutional and statutory duties, as well as the policies of the NPA, the only rational and lawful decision in the circumstances could have been to proceed with Zuma's prosecution.

2. The decision was unlawful and unconstitutional.

The NDPP ignored relevant considerations and took into account irrelevant circumstances in making his decision.  The key consideration was that a good case exists against Zuma.  The fact that the NDPP has thrown in the towel even though extensive investigations have provided the basis for a good case, leads ineluctably to the inference that the NDPP must have taken into account other irrelevant considerations.

The only legitimate motive for the NDPP could be the strength or weakness of the case against Zuma. As the NDPP has repeatedly asserted the strength of its case, the irresistible inference is that the NDPP must have acted for some other motive.

In terms of section 179(4) of the Constitution, the NDPP is obliged to "serve impartially and exercise, carry out or perform his ... powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law".

By taking into consideration irrelevant circumstances and extraneous factors, the NDPP has acted unlawfully and unconstitutionally.

3. The NDPP was not authorised to make the decision.

In terms of the NPA Act, the decision to discontinue a prosecution is primarily that of the regional Director of Public Prosecutions (DPP).  This reflects the practical consideration that the DPP is best placed to assess the prospects of success in court.  The NDPP only has a power to review such a decision.  In Zuma's prosecution, no decision was made by any DPP that could be subject to review by the NDPP.

4. The NDPP can be reasonably suspected of bias in his decision.

There is a reasonable suspicion that the NDPP, who is performing his functions in an acting capacity, was placed in an impossible situation to consider fairly and properly the matter of Zuma's continued prosecution.  The acting NDPP's continuation in his role is dependent on appointment by the President. It is likely that the next President, with the power to make that appointment, will be Zuma. The reasonable suspicion therefore exists that the acting NDPP could not consider Zuma's case impartially and fairly.

The DA believes that it has a right to lawful administrative action in this matter. Last month, with the NDPP's consent, we submitted representations to the NDPP which set out set out clearly and compellingly why the NPA should prosecute Zuma and why it should not drop the case that it had carefully built over the last eight years. We had a legitimate expectation that our representations to the NDPP would be properly and fairly considered, as part of a process of lawful and regular administrative action.

Clearly, that has not happened. The NDPP's decision violates the Constitution. It violates the law, and it violates the NDPP's own policies.  It is now up to the courts to provide relief.

That is just the first step in the process. The prosecution against Zuma must go ahead. If there is prima facie evidence that McCarthy and Ngcuka are guilty of criminal conduct, they must be prosecuted too. All the evidence must come out in open court.

That is the only way to clear the thick smoke of secrecy and concealment which now threatens to overpower the rule of law and stifle constitutional democracy in South Africa.

Statement issued by Democratic Alliance leader, Helen Zille, April 7 2009

Click here to sign up to receive our free daily headline email newsletter